' SYED ALLY MADAD SHAH (CHAIRMAN).---Both the Appeals Nos.246(R) of 1986 and 306(R) of 1988 have been filed by Mr. Abdur Razaq Sheikh, Deputy Economic Adviser, Industrial Incentive Reforms Cell, Ministry of Finance. Both are inter-linked and they are, accordingly, disposed of by one judgment.
2. The case of the appellant, briefly stated, is that he, on his transfer from the Government of the Punjab, joined the Federal Government in the Planning and Development Division as an Assistant Chief (BPS-18) w,e,f, 24-5-1973. He was posted as Assistant Chief (BPS-18) on the Industries and Commerce Section vide Planning and Development Division's Office Order No,33-Admn.I/74, dated the 4th December, 1974. He was selected for appointment as Deputy Chief (BPS-19), Industries and Commerce Section in the Planning & Development Division, on ad hoc basis, for a period of six months or till the availability of the nominee of the Federal Public Service Commission on terms and conditions set out in the Memorandum No,3(228)Admn-I/75, dated 16-9-1975. By another Notification of even number dated 22-3-1976, he was allowed to continue till a candidate was nominated by the FPSC. In due course of time, he was selected by the FPSC for the post of Deputy Chief and he was appointed as such w,e,f, 8-7-1976. Subsequently, he was transferred to the Energy Section vide Office Order No,3/Admn.I/80, dated 23-1-1980. He was transferred back to the Industries and Commerce Section in July, 1980. In September, 1980, he was sent to UNDP, Tanzania, on deputation for a period of one year, which was later extended upto 31-12-1984. On completion of the tenure of his deputation there, he proceeded on ex-Pakistan leave. While he was on leave, order of his posting as Deputy Economic Adviser (BPS-19) in the Finance Division was issued under Notification dated 5-9-1985. By Order No,3(52)Admn.I/81, dated the 13th May, 1986, Mr. Tajammal Hussain, who is the respondent No,3, was promoted as Chief, Industries and Commerce Section, with effect from 11-5-1986. The appellant made representation dated 3-6-1986 against the promotion of respondent No,3 who, according to him, was junior to him as per seniority list issued in the year 1979. He was informed vide Memorandum No,6(33). Admn./75, dated 2nd July, 1986 that he had not suffered any injustice by the promotion of respondent No,3 and he would be considered for promotion when it would become due in the Economists Group. He, therefore, filed Appeal No,246(R)/86 on 31-7-1986, with the following prayer:- "It is, therefore, respectfully prayed that this Honourable Tribunal may be pleased to declare that the order of promotion of Respondent No,3 to the post of Chief of the Industries and Commerce Section of the Planning and Development Division is illegal and set it aside. The respondents Nos.1 and 2 may also be directed to consider the case of appellant for appointment to the post alongwith other eligible officers in accordance with the rules and also to consider the question of according a seniority to the appellant at that post from the date he should have been considered for promotion. The costs of the appeal and any other relief which this Honourable Tribunal may consider just and proper may also kindly be awarded."
3. The appellant's other grievance is that he was shocked to fmd from the annexures to the written objections filed to his aforesaid appeal No,246(R) of 1986 in September, 1988 that the Planning and Development Division had issued a seniority list of Deputy Chiefs in the Industries and Commerce Section on 21-1-1982 and his name was not mentioned therein. He made representation on 27-10- 1988 for rectification of the seniority list of 1982 by mentioning his name at appropriate place. His representation was rejected as per communication dated 5-11-1988. He, therefore, preferred Appeal No,306(R) of 1988 on 3-12-1988, with the following prayer: ' It is respectfully prayed that this Honourable Tribunal may be pleased to set aside the impugned order and declare the appellant as senior to respondents No,3 and 4 and also direct that the original position of the appellant be restored in the Seniority List by placing him above Respondents Nos.3 and 4 in the list."
4. The grounds raised by the appellant in the two appeals are reproduced below:- APPEAL NO.246(R) OF 1986; "19. That the appellant was appointed as Deputy Chief in the Industries and Commerce Section of the Planning and Development Division by direct recruitment on the recommendations of the FPSC w,e,f, 7-6-1976.
20. That after satisfactory completion of the probationary period, the appellant became a regular incumbent of the post of Deputy Chief, particularly because he continued to work against a regular post of Deputy Chief after the return of Mr. Irshad Ahmad from deputation abroad.
21. That the appellant is senior to respondent No,3 who was appointed as Deputy Chief in the Industries and Commerce Section by transfer on 21-3-1977.
22. That according to the terms of para. 3 of the Planning and Development Division's Notification No,SRO.19(KE)/85, dated the 27th December, 1984, promotion to the post of Chief in a Section shall be made by selection from amongst the Deputy Chiefs in that Section working on a regular basis who possess 17 years' experience of work in BPS-17 and above or 12 years service in BPS-18. The appellant fulfils the prescribed requirements.
23. That it has been conceded by the Planning and Development Division in their Memo referred to in para. 18 above that the case of the appellant for promotion as Chief, Industries and Commerce Section, was not considered alongwith that of respondent No,3.
24. That the promotion of Respondent No,3 a junior to the post of Chief without considering the case of the appellant is contrary to rules and illegal.
25. That the representation submitted by the appellant does not seem to have been considered at the appropriate level. In fact, it seems to have been rejected in a perfunctory manner at a lower level without applying mind to the facts of the case. This is clearly against the principles of natural justice.
APPEAL NO.306(R) OF 19 "I. That the omission of appellant's name from the Second Seniority List was arbitrary, illegal and unlawful. II. That neither any copy of second seniority list was supplied to him, nor was the appellant given any chance to explain his position against the omission of his name from it. III. That the enquiries made by the appellant have revealed that the whole thing was manipulated in a very clever manner by some interested parties for ulterior motives with the intention of harming him and that it was done as a result of a wrong advice obtained from the University Grants Commission on the basis of incomplete information as is evident from their Letter No,15-1/Acad/Misc/83, dated the 27th September, 1987 (Annexure-O).
IV. That the position stated in para 18 above is borne out from the contents of the Establishment Division OM No,3/30/85-Admn.I, dated 3rd December, 1985 (Annexure V. That the appellant is eminently qualified to hold the post of Deputy Chief in the Industries and Commerce Section because, not only that he has studied Industrial Economics as part of the MA. Economics, but his also completed an approved course of study (M.Sc.) in Agricultural Economics from the University of London (Annexure '0') which is one of the qualifications prescribed for the post. (Annexure VI.
That the appointment of the appellant as Deputy Chief was regular for all intents and purposes and the deletion of his name from the Seniority List was illegal and was manipulated for ulterior motives as is evident from a copy of the Establishment Division O.M. No,3/30/85Admn-I, dated 342- 1985, a copy of which has been appended by the Planning and Development Division with their objections to Appeal No,246(R)/1986 in which it is stated, among others, that "the Planning and Development Division in their O.M. No,6(33)Admn.Tech/75, dated 31-7-1985, changed the idea of absorption of Mr. Abdul Razaq Shaikh".
VII. That the advice of the Establishment Division regarding reversion of the appellant to the post of Assistant chief contained in their O.M., referred to above, is contrary not only to the provisions of Civil Servants Act, 1973, but is also biased and contrary to the principles of justice and fairplay. VIII.
That the departmental representation submitted by the appellant has not been submitted to the competent authority but has been rejected at a lower level. The order of rejection is thus illegal. IX.
That the appellant has been made a victim of conspiracy by some interested parties for motives best known to them."
5. Both the appeals have been resisted by the Federal Government and by Mr. Tajammal Hussain, who is the respondent No,3 in both the appeals. Mr. K.N. Soofi, who is respondent No,4 in Appeal No,306(R) of 1988, only, has remained ex parte. In Appeal No,246(R) of 1986, written objections on behalf of the Federal Government have been filed by Mr. Muhammad Sadiq, Section Officer (Admn.), Economist Group, Planning & Development Division. Respondent No,3 also has filed written objections. In Appeal No,306(R) of 1988, written objections have been filed by only the respondent No,3, Mr. Tajammal Hussain. Other respondents have not filed written objections. Their relevant extracts are reproduced below:- APPEAL NO.246(R) OF 1986: "(I) PRELIMINARY OBJECTIONS: (By the Department)
(i) That the appeal is not maintainable in law or facts.
(ii) That the appeal is misconceived.
(iii) The appeal is barred by limitation.
(iv) The appeal is bad for non-joinder of necessary parties.
(v) The appeal is hit by proviso (a) to subsection (1) of Section 4 of the Service Tribunals Act, 1973.
(II) ON FACTS: (By the Department)
(4) The appellant was appointed on ad hoc basis against a deputation vacancy caused by Mr. Irshad Ahmad who proceeded abroad for a specified period. (App. -I).
(6-7) The University Grants Commission held that the appellant did not possess specialisation in Industrial Economics, as mentioned in the judgment passed by the Hon'ble Federal Service Tribunal on 1-1-1984 in Appeal No,157(R) of 1981.
(9) According to recruitment rules, Appendix II of the post, the posts of Deputy Chief in the Industries and Commerce Section are to be filled in the. Following ratio:-
(1) Promotion 33%
(2) Direct recruitment 50%
(3) Transfer 17% ' At the time when the appellant was appointed against a deputation vacancy, there were two posts in the Industries and Commerce Section. Against those two posts M/s. Irshad Ahmad (direct recruit) Nazir All (prumotee) stood appointed. Thus the quota against promotion and direct recruitment was fully utilized and proceeding of Mr. Irshad Ahmad, on deputation, abroad did not add to the number of sanctioned posts, as return of Mr. Irshad from deputation, the appellant was liable to vacate the post. This was very much clear to the appellant as is evident from the appointment given to him. (Appendix III).
(11) Since in 1979, the appellant held the post of Deputy Chief (BPS-19), his name was included in the tentative seniority list circulated by the Planning and Development Division. The appellant's name was deleted from the fmal seniority list circulated on 21-1-1982, copy at Appendix V.
(13) The incumbent of the post, Mr. Irshad Ahmad, returned to Pakistan in June, 1981. In a normal course, the appellant would have either been reverted to his lower post that time or absorbed elsewhere. This was, however, not done as he was proceeding on deputation abroad and actually proceeded in September, 1981 (App: VI).
(15) On return from abroad the appellant was liable to reversion as there was no vacancy available against direct recruitment quota in the Industries and Commerce Section. Moreover, the original incumbent of the post against which he was selected had already occupied the post. In order to save the appellant from hardship, he was not reverted but adjusted elsewhere (Appendix VII) till promotion in the Economist Group to which he originally belonged.
(16) The respondent No,3 (Mr. Tajammal Hussain) was a regular member of I & C Section appointed against a post reserved for appointment by transfer whereas the appellant was appointed as Deputy Chief (BPS-19) in that Section against a deputation vacancy which ceased to exist on return of regular incumbent viz. Mr. Irshad Ahmed from abroad on 24-6-1981. The appellant was not reverted to his original post and was allowed to remain as Deputy Chief till his deputation case for Tanzania was finalised. He proceeded on deputation in September, 1981 (Appendix VIII).
(18) As against Para 17 above. The appellant was promoted as Deputy Chief (BPS-19) in the Economists Group w,e,f, 22-5-1986, copy at Appendix IX.
(20) On return of Mr. Irshad Ahmad, on 24-6-1981, from deputation abroad, the appellant was allowed to continue till his U N assignment case was finalised and he proceeded to Tanzania shortly afterwards in September, 1981, with the same status as was recommended to UN before return of the deputationist. Otherwise, he had no right to continue as Deputy Chief after return of Mr. Irshad Ahmad as advised by the Establishments Division vide their O.M. No,3/30/85-Admn.I, dated 3-12-1985, copy at Appendix XI.
(21) The appellant was appointed against a deputation vacancy and that vacancy ceased to exist on return of its regular incumbent, and he cannot be treated as senior to Mr. Tajammal Hussain, who was regularly appointed against a transfer quota post under the Recruitment Rules (Appendix H).
' On return of the incumbent the deputation vacancy having ceased to exist, the appellant did not remain a member of I & C Section.
(23) Since the appellant was not a regular member of I & C Section at the relevant time, the question of consideration of his name for promotion alongwith regular members of I & C Section did not arise.
(24) The promotion of Mr. Tajammal Hussain (Respondent No,3) a regular member of I & C Section was made exactly in accordance with the rules (Appendix XII). The appellant was appointed against a short term deputation vacancy which ceased to exist on return of its regular member, viz. Mr. Irshad Ahmed "
' Written objections filed by the respondent No,3, Mr. Tajammal Hussain, are also on the same lines as those filed on behalf of the Federal Government.
APPEAL NO.306(R) OF 1988: ' The respondent No,3, Mr. Tajammal Hussain, has raised the following preliminary objections:-
(1) That the appeal is barred by limitation.
(2) That the appeal is bad for non-joinder of necessary parties.
(3) That the appeal is misconceived as appellant's earlier appeal No,246(R) of 1986 on the same subject-matter is still pending in this Hon'ble Tribunal.
(4) That the appeal is.Hit by the principle of estoppel.
(5) That the appellant has concealed material facts and tried to mislead this Hon'ble Tribunal and has not come in the Court with clean hands.
(6) That no cause of action has accrued to the appellant.
(7) That the appellant is not professionally competent even to hold the position of Deputy Chief as held in Appeal No,157(R) of 1981 decided on 1-1-1984 by this Hon'ble Tribunal and upheld by the Supreme Court in CP No,165(R) of 1986 decided on 5-11-1986. Hence the present appeal is not maintainable and is liable to be dismissed.
' On actual aspect, the objections filed by the respondent No,3 (Mr. Tajammal Hussain) are almost the same as those filed on behalf of the Federal Government in Appeal No,246(R) of 1986.
6. In Appeal No,246(R) of 1986, the appellant claims benefit of promotion, whereas in the second Appeal No,306(R) of 1988 he seeks determination of seniority vis-a-vis that of the respondents 3 and 4. Both the issues involve determination of the nature of appointment of the appellant in the Industries and Commerce Section in the Planning and Development Division and also that of the appointment of the respondents 3 and 4. It would appear from the events stated above that the appellant was serving as Assistant Chief, Economists Group, when he was temporarily posted to work as Assistant Chief in the Industries and Commerce Section as per Office Order No,33- Admn.I/74, dated 4th December, 1974 (Annex. A to the memo. Of appeal). He was later appointed as a Deputy Chief in the Industries and Commerce Section on ad hoc basis on the terms and conditions 'contained in Memorandum dated 16-9-1975 (Annexure B to the memo. Of appeal).
Notification of his appointment as Deputy Chief, as such, was issued on 27-9-1975. It is Annexure 'C' to the memo of appeal. His ad hoc appointment was extended till the nomination of a candidate by the Federal Public Service Commission vide Notification dated 22-3-1976. In due course of time, he was nominated by the Federal Public Service Commission for the post of Deputy Chief, Industries and Commerce Section, Planning and Development Division and he was issued the following letter of offer of appointment dated 16-6-1976 (Annexure `G'): GOVERNMENT OF PAKISTAN PLANNING AND DEVELOPMENT DIVISION NO: 3(143)Admn.I/74, Islamabad, the 16th June, 1976.
MEMORANDUM ' Subject: RECRUITMENT TO THE POST OF DEPUTY CHIEF INDUSTRIES AND COMMERCE SECTION, PLANNING AND DEVELOPMENT DIVISION.
' The undersigned is directed to say that on the recommendation of the FPSC Mr. Abdul Razzak Shaikh working on an ad hoc basis, has been selected for appointment as Deputy Chief, Industries and Commerce Section, Planning and Development Division against the deputation vacancy of Mr. Irshad Ahmad, presently on deputation with the RCD, on the following terms and conditions:-
(i) He will be entitled to draw pay in Grade-19 (i,e, Rs,1,800-80-2,200) with usual allowances as admissible under the rules.
(ii) He will be on probation for a period of one year extendible by an order either before or after its termination by a further period not exceeding one year provided that if no order has been made by the day following the termination of either of the aforementioned probationary periods the appointment will be deemed to be held until further orders.
(iii) His appointment will be on temporary basis and if his work or conduct is found to be unsatisfactory his services will be liable to termination, without any notice or reversion to his parent office, if any.
(iv) If he wishes to terminate his services under the Government at any time, he shall resign in writing but shall thereafter continue to serve the Government till his resignation is accepted in writing.
(v) His appointment will be subject to his being declared medically fit and to the verification of his antecedents, if not already done.
(vi) In respect of all other service matters, e.g. Leave, medical facilities etc. He will be governed by the appropriate rules of the Federal Government as applicable to the officers of his grade of service.
2. If the offer is acceptable to Mr. Abdul Razzak Shaikh on the terms and conditions mentioned above, he may please communicate his acceptance to the undersigned immediately. Sd/- Qasim Hussain Section Officer Government of Pakistan".
' The aforesaid letter of offer of appointment was followed by the Notification dated 8-7-1976 (Annexure 'H'), which too is reproduced below:- GOVERNMENT OF PAKISTAN PLANNING & DEVELOPMENT DIVISION Islamabad, 8th July, 1976.
NOTIFICATION ' No,6(33)/Ad/SO-II/75: Having been selected by the Federal Public Service Commission for the post of Deputy Chief, Industries & Commerce Section, Planning & Development Division, MrAbdul Razzaq Shaikh, a permanent Assistant Chief (Grade-18), working as Deputy Chief in the same Division on an ad hoc basis, is appointed to Grade-19 post of. Deputy Chief against the deputation vacancy of Mr. Irshad Ahmad, and is placed on probation of one year with effect from 7th June, 1976 (forenoon) extendible by order, either before or after its termination by a further period not exceeding twelve months, provided that if no order is made by the day following the termination of either of the probationary period, the appointment shall be deemed to be held until further orders.
Sd/- M. Ashraf Ali Khan Section Officer Government of Pakistan."
' The appellant continued in service until he was sent on deputation on foreign service for appointment as UN Economist (Project Analysis and Evaluation) Tanzania, for a period of one year with effect from 16-10-1981 as per letter dated 19-9-1981 addressed to the Accountant-General, Pakistan Revenues, Rawalpindi from the Planning and Development Division. In the meantime, Mr. Irshad Ahmad, in whose deputation vacancy the appellant was appointed had returned and resumed duty as Deputy Chief in the Planning and Development Division on 8-7-1981 as per Notification dated 16-7-1981 (Annexure R-4/4 of the written objections filed by the Government in Appeal No,246(R) of 1986. The appellant's tenure of deputation of foreign service was extended and he returned somewhere in September, 1985 and he was posted as Deputy Economic Adviser (BPS- 19), in the Finance Division, on purely temporary basis from the date of assumption of the charge of the post, as per Notification dated 5-9-1985. He was regularly promoted to the post of Deputy Chief/Deputy Economic Adviser/Deputy Agricultural Commissioner/Director Research (OPIC Cell)
(BPS-19) in the Economists. Group w,e,f, 22nd May, 1986 vide Notification dated 26-5-1986 (Appendix IX to the written objections filed by the Government). On the other hand, the respondent No,3, Mr.Tajammal Hussain was appointed as Deputy Chief (BPS-19) in the Industries and Commerce Section, Planning Division on his transfer from Directorate of Geological Survey of Pakistan and he assumed charge of the post on 21-3-1977 as per notification dated 31-3-1977 and he continued holding the post. He was promoted as Chief (BPS-20) in the Industries and Commerce Section w,e,f, 11-5-1986 as per notification dated 13-5-1986 (Annexure A), when the appellant was posted on temporary basis in the Economists Group. It follows that the appellant's entry as Deputy Chief (BPS-19) in the Industries and Commerce Section was earlier than that of the respondent No,3 Mr. Tajammal Hussain. But the nature of their appointment in the same Section was different. The appellant was appointed against the quota of direct appointees, whereas the respondent No,3 was appointed against the quota of transferees. According to the department, the appointments to the Technical and Economic posts at the relevant time were regulated under the rules called as "Class-1 and Class-II Technical and Economic Posts of the Planning Division Recruitment Rules of 1970," a copy whereof has been filed as Appendix-II to the written objections by the Government. Under Rule 5 of the said Rules, the appointments to the posts of Deputy Chiefs were to be made in the ratio of 33% promotees; 50% direct appointees and 17% transferees. It is stated in the written objections filed by the Government that at the time the appellant was appointed, there were two posts of Deputy Chiefs in the Industries and Commerce Section and one of them was held by Mr. Irshad Ahmad, a direct recruit, and another by Mr. Nazir Ali, a promotee, and the post held by Mr. Irshad Ahmad became vacant on account of his proceeding on foreign service on deputation and the appellant was appointed as a direct recruit against that post until the return of Mr. Irshad Ahmad from deputation. It was specifically mentioned in the appointment order/notification of the appellant that he was selected by the Federal Public Service Commission and appointed against the post which was temporarily vacated by Mr. Irshad Ahmad. It is not denied that Mr.Irshad Ahmad had returned on completing his period of deputation and assumed charge in the Industries and Commerce Section and the appellant, who was to revert, was sent on deputation and there was no post for him in Grade-19 in the Industries and Commerce Section on his return from deputation; and he was, therefore, posted in his parent Section viz. Economists Group and was ultimately regularly promoted in that Group. The respondent No,3 continued holding the post of Deputy Chief in the Industries and Commerce Section against the quota of transferees and had the luck of getting promotion as Chief on the basis of his seniority in the Industries and Commerce Section. Since the appellant held the post of Deputy Chief (BPS-19) in the Industries and Commerce Section for a limited period until the incumbent of the post, Mr. Irshad Ahmad, was on deputation on foreign service, he did not acquire vested right against any post of Deputy Chief in the Industries and Commerce Section and he has no case to lay claim for promotion as Chief (BPS-20), the post the respondent No,3 was promoted to.
7. Consequent to the conclusions arrived at above that the appellant did not hold the post of Deputy Chief (BPS-19) in the Industries and Commerce Section for indefinite period and he did not continue in that Section after the return of Mr. Irshad Ahmad and he went on deputation abroad, he could not find his place in the seniority list of the Deputy Chiefs in the Industries and Commerce Section and, therefore, he has no case for claiming seniority above the respondent No,3 after he said goodbye to that Section and went abroad on deputation and got his posting in the Economists Group on his return.
8. As regards the appellant's seniority vis-a-vis that of the respondent No,4 Mr. K.N. Soofi agitated in Appeal No,306(R) of 1988, the appellant has not indicated in the memo. Of appeal any specific ground challenging the seniority position of the respondent No,4. The appellant has grievance against the seniority list issued in the year 1982, a copy whereof has been filed as Annex.`L,', which does not contain the name of the appellant but contains the names of respondents Nos.3 and 4 at S.Nos.3 and 4 in the list of the Deputy Chiefs. The entries in the list show that the respondent No,4 Mr. K.N. Soofi had entered the Government service as Deputy Chief on 19-5-1979. The appellant has placed reliance on the seniority list issued in the year 1979, wherein his name was mentioned in the list of Deputy Chiefs at S.No, 21, whereas the name of respondent No,3 appeared at S.No,23 and the name of the respondent No,4 was not mentioned there. The respondent No,4 has not contested the appeal. Nothing has been stated by the Government as well as by the respondent No,3 in respect of his seniority. At the hearing of the appeal, we were shown, by the departmental representative from the Establishment Division, a copy of the Summary for the Establishment Secretary dated 3- 4-1979 initiated from the Ministry of Planning and Development, seeking approval of the competent authority for appointment of Mr. K.N. Sufi to the post of Deputy Chief in the Industries and Commerce Section of the Planning and Development Division on his selection against the post by the Federal Public Service Commission. It is mentioned in paragraph 2 of the Summary that Mr. Soofi was appointed as a Consultant on contract basis against that post for a period of one year w,e,f, 10-4-1976 with the approval of the Establishment Division and his period of contract was extended from time to time. Approval of the competent authority was conveyed under Order No,6/20/79-A.III, dated 15-5-1979. Notification of the regular appointment of Mr. Soofi as Deputy Chief in the Industries and Commerce Section was issued on 29-5-1979. Obviously, the entry of Mr. K.N. Soofi in the Industries and Commerce Section as a Deputy Chief was subsequent to that of the appellant in that Section. But it has been discussed above that the appellant's entry in the Section was for a limited period, whereas the respondent No,4 found his entry in the Section on regular basis and for an indefmite period. The appellant's reliance on the seniority list issued in the year 1979 does not advance his case. His name did appear in that list as he was appointed as Deputy Chief in the Industries- and Commerce Section on his selection by the Federal Public Service Commission w,e,f, 8-7-1980 and the respondent No,3 was placed below him in that seniority list as he was appointed in the Section as Deputy Chief in the year 1977, and the name of the respondent No,4 could not find place there as he was not appointed in the Section by the time the list was issued. The appellant has grievance against the omission of his name in the list published in the year 1982 and the omission of his name has obvious explanation that his appointment in the Industries and Commerce Section had come to an end on the return of Mr. Irshad Ahirad from deputation and he had left the Section and proceeded on deputation on foreign service. Thus the appellant has no case to agitate against the seniority list issued in the year 1982. It has been discussed and held above while dealing with Appeal No,246(R) of 1986 that the appellant did not have place for regular appointment in the Industries and Commerce Section and the question of his seniority after he left the Section did not arise.
9. The factual aspect of both the appeals has been dealt with above and the conclusions drawn therefrom have been recorded. The respondents have raised several legal objections questioning the maintainability of the appeal and raising the question of limitation. The question of limitation does need consideration. In Appeal No,246(R) of 1986, the appellant has challenged the promotion of respondent No,3 as Chief (BPS-20) in the Industries and Commerce Section, w,e,f, 11-5-1986. He made representation dated 3-6-1986 against the promotion of respondent No,3. His representation was turned down vide Memo. No, 6(33)Admn./75, dated 2-7-1986, He preferred this appeal on 31-7- 1986. This appeal is, therefore, well within the period of limitation. The appellant's grievance in Appeal No,306(R) of 1988 is against the omission of his name from the seniority list circulated in the year 1982. His case is that he was not aware of the circulation of the seniority list issued in the year 1982 and he became conscious of that fact only in September, 1988 when he received a copy of the written objections filed in his Appeal No,246(R) of 1986 by the Government that a seniority list was actually issued in the year 1982 and he found that his name was not mentioned there. He made representation on 27-10-1988 and received rejection order as per communication dated 5-11-1986 and he filed Appeal No, 306(R) of 1988 on 3-12-1988. It would appear from the facts stated at paragraph 2 ante that the appellant proceeded on deputation to Tanzania in September, 1980 and he remained on deputation there upto 31-12-1984 and thereafter he proceeded on ex-Pakistan leave and returned somewhere in September, 1985. The seniority list of 1982 was circulated in January, 1982 when the appellant was out of the country. On his return from deputation and leave, he was posted in the Finance Division. The respondent No,3 was promoted as Chief, Industries and Commerce Section w,e,f, 11-5-1986. This event must have been eye-opener for the appellant as to have found out the reason he was not considered for the promotion. However, there is no mention in the departmental representation dated 3-6-1986 and also in the memo of appeal dated 31-7- 1986 that he had become conscious of the circulation of seniority list of 1982. There is no evidence on record that he had become conscious of the seniority list of 1982 earlier than the service on him of the written objections filed by the respondents in Appeal No,246(R) of 1986. Of course, the respondent No,3 had filed written objections in that appeal on 4-12-1986 and the objections on behalf of the Government were filed on 1-2-1988, but the record shows that copies of the objections were despatchedlo the appellant on 27-9-1988. The appellant has also stated that he became conscious in September, 1988 of the circulation of the seniority list of 1982 when he received copies of the objections filed by the respondents in Appeal No,246(R) of 1986. The statement of the appellant is, therefore, to be accepted as there is nothing on record to refute it. He made representation on 27-10-1988 for rectification in the seniority list of 1982. His representation was rejected on 5-11-1988. The Appeal No,306(R) of 1988 filed on 3-12-1988 is, therefore, well within the period of limitation.
10. Another legal objection taken in the Appeal No,246(R) of 1986 is that the appeal is hit by proviso
(a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, as the appellant did not file departmental appeal. The appellant made only representation to the Secretary, Planning and Development Division against the promotion of the respondent No,3 as Chief and his representation was rejected at that level; but he did not prefer departmental appeal which he could file under the provisions of Rule 4 of the Civil Servants (Appeal) Rules, 1977. Having filed the appeal without availing remedy of departmental appeal the appeal is hit by subsection (1) of section 4 of the Service Tribunals Act, 1973.
11. The other legal objections agitated by the respondents are misconceived. It has not been indicated as to how the appeal suffers from non-joinder of necessary parties. Filing of the Appeal No,246(R) of 1986 did not stand in the way of the appellant to have preferred second Appeal No,306(R) of 1988 for rectification of the entries in the seniority list of 1982. No question of estoppel is involved.
12. Both the appeals are liable to be dismissed on merits, as discussed above. The Appeal No,246(R) of 1986 is also liable to be dismissed on the ground of non-maintainability under the provisions of section 4(1) of the Service Tribunals Act, 1973. Both the appeals are dismissed accordingly. No order is made for costs.